PD-0690-22 03/01/2023
“Was the indictment dated July 9, 2021 for an offense alleged to have occurred on July 7, 2019, returned within the two-year limitations period set forth in 12.02(a) of the Code of Criminal Procedure?”
Vieira is alleged to have committed an aggravated assault on July 7, 2019. The indictment was returned July 9, 2021. He filed an application for writ of habeas corpus and motion to dismiss, both alleging the two-year limitations period had run. The trial court denied relief.
The court of appeals affirmed. The court focused on Tex. Code Crim. Proc. art. 12.04, which says, “The day on which the offense was committed and the day on which the indictment or information is presented shall be excluded from the computation of time.” Applying this plain language, the first day for purposes of computation would have been July 8, 2019—the day after commission. The last day of the two-year period would be July 8, 2021. As per statute, an indictment returned the following day would be timely because that day is not counted. Thus, an offense committed July 7, 2019 must be indicted by July 9, 2021.
Vieira argues that proper application of Art. 12.04 shows that two years from the commission of the offense is July 7, 2021, making July 8, 2021 the last day for indictment. The problem, Vieira says, is that calculating years from a date already entails excluding the first day. See Tex. Gov’t Code §§ 311.005(12) (“‘Year’ means 12 consecutive months.”), 311.014(c) (“If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun[.]”). As this is what the first part of Art. 12.04 says to do, a limitations calculation that ends on the next numerical day of the same month in a later year before adding the indictment day double counts the initial “grace” day and so misapplies Art. 12.04.
